Rosales v. Barr

• Decision Date: 18 November 2020
• Docket Number: No. 18-70666,18-70666
• Citation: 980 F.3d 716
• Parties: Israel SANCHEZ ROSALES; Ma Antonia Martinez Hernandez Sanchez, AKA Maria Antonia Hernandez Sanchez, Petitioners, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

980 F.3d 716

Israel SANCHEZ ROSALES; Ma Antonia Martinez Hernandez Sanchez, AKA Maria Antonia Hernandez Sanchez, Petitioners,

v.William P. BARR, Attorney General, Respondent.

No. 18-70666

United States Court of Appeals, Ninth Circuit.

Submitted August 13, 2020^* Pasadena, California

Filed November 18, 2020

CHOE-GROVES, Judge:

Israel Sanchez Rosales and Maria Antonia Martinez Hernandez Sanchez, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals ("BIA") denying their second motion to reopen. That motion has two parts: First, Petitioners contend that ineffective assistance of a non-attorney notario who advised them not to attend their hearing caused them to be ordered removed in absentia. Second, Petitioners seek to have their case reopened so that they can apply for cancellation of removal based on the hardship their removal would cause to their two U.S. citizen sons.

We conclude that the BIA erred by treating Petitioners’ failure to show prejudice caused by the alleged ineffective assistance as a basis for denying their motion to reopen proceedings. A showing of prejudice is not required when ineffective assistance leads to an in absentia order of removal. See Lo v. Ashcroft , 341 F.3d 934, 939 n.6 (9th Cir. 2003) (citing In re Rivera-Claros , 21 I. & N. Dec. 599, 603 n.1 (BIA 1996) ); see also Monjaraz-Munoz v. INS , 327 F.3d 892, 897 (9th Cir. 2003), amended by 339 F.3d 1012 (9th Cir. 2003).

In light of this conclusion, we need not reach the BIA's decision denying Petitioners’ motion to reopen proceedings to allow Petitioners to apply for cancellation of removal.

I.

A.

Petitioners arrived in the United States in approximately 2000. They have two U.S. citizen sons, ages thirteen and fifteen, one of which suffers from developmental disabilities necessitating medication and special education. Petitioners sought immigration assistance from a non-attorney notario named Carlos Lewis, who told them that because of their long residency in the United States and their son's challenges, it would be easy to obtain green cards. According to Petitioners, Lewis prepared and submitted an asylum application on their behalf without their authorization.

Petitioners received notices to appear, including instructions concerning their scheduled hearing before an immigration judge. The instructions warned Petitioners that if they failed to appear for their hearing, they could be ordered removed. Petitioners claim that despite those instructions, Lewis advised them not to attend the hearing. They failed to appear and were ordered removed in absentia on March 26, 2014.

B.

Petitioners filed their timely first motion to reopen on April 7, 2014. This first motion to reopen does not include the claim that Lewis advised Petitioners not to attend their hearing, but instead avers that Israel had contacted the immigration court over the course of several days to ask where he and Maria should go for their hearing and had been told that the hearing was not on the court's calendar.

The immigration judge denied the first motion to reopen because Petitioners acknowledged receiving their notices to appear but nonetheless failed to explain "why, after so much alleged diligence in attempting to ascertain information about their case, they simply neglected to appear on the date their case was scheduled, notwithstanding having received clear notice of their obligation to appear in their [notices to appear]."

Petitioners appealed that order to the BIA and repeated the claim that Israel had attempted to call the immigration court to obtain details about the hearing, but did not mention Lewis’ advice that Petitioners should not attend the hearing. The BIA affirmed the immigration judge's ruling and dismissed the appeal on August 27, 2015.

Petitioners filed a timely petition for review in this court on September 14, 2015. Petitioners’ current counsel filed a notice of appearance in that matter on December 16, 2015. However, Petitioners failed to file their opening brief and the petition was dismissed for failure to prosecute under Circuit Rule 42-1 on August 17, 2016.

Although this first motion to reopen and the subsequent appeal appear to have been prepared pro se, Petitioners repeatedly assert that the documents were prepared by Lewis. At minimum, it appears that Lewis signed the certificate of service attached to the petition for review filed in this court.

C.

Petitioners filed their second motion to reopen removal proceedings with the BIA, the motion underlying the current petition for review, on April 28, 2017, approximately eight months after their first petition for review was dismissed by this court. For the first time, Petitioners claim that Lewis instructed them not to attend their hearing before the immigration judge.¹ The motion states that Petitioners first learned of Lewis’ ineffective assistance after they retained their current counsel—the same firm that appeared on their behalf in this court in 2015. The motion does not say exactly when current counsel determined that Lewis provided ineffective assistance, only that it was "[a]fter thoroughly investigating their case." Petitioners’ second motion also seeks to reopen proceedings to apply for cancellation of removal based on the hardship that removal to Mexico would cause their sons, especially their son who suffers from developmental disabilities.

The BIA denied the second motion to reopen on February 16, 2018, setting forth two reasons in support of its decision. First, the BIA denied Petitioners’ motion to reopen to rescind the in absentia order because Petitioners failed to "establish[ ] that they were prejudiced by ineffective assistance or fraud." Second, the BIA denied Petitioners’ motion to reopen to seek cancellation of removal because they failed to present evidence sufficient to show that "their return to Mexico would result in exceptional and extremely unusual hardship for their ... children."

Petitioners filed this timely petition for review on March 9, 2018.

II.

We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Cano-Merida v. INS , 311 F.3d 960, 964 (9th Cir. 2002). The BIA abuses its discretion when it makes an error of law or fails to provide a reasoned explanation for its actions. Cerezo v. Mukasey , 512 F.3d 1163, 1166 (9th Cir. 2008) ; Movsisian v. Ashcroft , 395 F.3d 1095, 1098 (9th Cir. 2005).

III.

"In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case." Andia v. Ashcroft , 359 F.3d 1181, 1184 (9th Cir. 2004) (citing INS v. Ventura , 537 U.S. 12, 16–17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) ). Here, the BIA gave two reasons for denying Petitioners’ second motion to reopen due to ineffective assistance: First, that the denial of Petitioners’ first motion to reopen had been "legally correct"; and second, that Petitioners had not shown that "they were prejudiced by ineffective assistance or fraud."

The first reason cannot stand on its own because Lewis’ ineffective assistance had not yet been disclosed when the agency decided the first motion to reopen. Relying solely on the previous decision would impermissibly ignore the central argument of the second motion. See Sagaydak v. Gonzales , 405 F.3d 1035, 1040 (9th Cir. 2005) ("We think it goes without saying that IJs and the BIA are not free to ignore arguments raised by a petitioner.").

The BIA's second ground for denial is legally erroneous. Petitioners were not required to demonstrate that the ineffective assistance of the non-attorney notario caused them prejudice. Ordinarily, a person who claims to have received ineffective assistance in an immigration proceeding must show that the ineffective assistance caused prejudice. See Flores v. Barr , 930 F.3d 1082, 1085 (9th Cir. 2019) (citing In re Lozada , 19 I. & N. Dec. 637 (BIA 1988) ). But when ineffective assistance leads to in absentia removal, we have "followed the BIA's usual practice of not requiring a showing of prejudice." Lo , 341 F.3d at 939 n.6 (citing Monjaraz-Munoz , 327 F.3d at 898 ).

In Lo , we observed that the BIA "does not normally require a showing of prejudice when a motion for rescission of an in absentia removal order is grounded on ineffective counsel." Id. We relied on the BIA's decision in In re Rivera-Claros , in which it explained that "in order to rescind an order of deportation entered following a hearing conducted in absentia," petitioners need not establish "prejudice to obtain relief." 21 I. & N. Dec. at 603 n.1 ; see also In re Grijalva-Barrera , 21 I. & N. Dec. 472, 473 n.2 (BIA 1996) ("[A]n alien is not required to show prejudice in order to rescind an order of deportation entered following a hearing conducted in absentia under [former] section 242B(c)(3) of the Act.").²

However, in Lo , we noted that the BIA has in at least one case analyzed prejudice in granting a "motion to reopen an in absentia order of deportation on the basis of ineffective assistance of counsel." 341 F.3d at 939 n.6 (citing In re N-K- & V-S- , 21 I. & N. Dec. 879, 881 (BIA 1997) ). But in that decision, the BIA did not explain why it had analyzed prejudice despite its prior statements in In re Rivera-Claros and In re Grijalva-Barrera that a showing of prejudice was not required in that context. See In re N-K- & V-S- , 21 I. & N. Dec. at 881. Regardless, the BIA ultimately determined that prejudice had been shown because the petitioners’ attorney had not informed them of the date of their hearing, thus analyzing whether a showing of prejudice was required was not necessary to the BIA's decision. Id. Although we were aware of In re N-K- & V-S- when we decided Lo , we concluded that not requiring a showing of prejudice is the BIA's "norm[ ]" and "usual practice," and determined...